Grütter v Lombard and Another (628/05) [2007] ZASCA 2; [2007] 3 All SA 311 (SCA); 2007 (4) SA 89 (SCA) (20 February 2007)

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[2007] ZASCA 2
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Grütter v Lombard and Another (628/05) [2007] ZASCA 2; [2007] 3 All SA 311 (SCA); 2007 (4) SA 89 (SCA) (20 February 2007)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case No: 628/05
REPORTABLE
In
the matter between
ERNST
GOTTLIEB MARTIN GRÜTTER Appellant
and
CHRISTOFFEL
ZANDSPRUIT LOMBARD First Respondent
ELIZABETH
OOSTHUIZEN Second Respondent
_______________________________________________________________
Coram: STREICHER, NAVSA, NUGENT, HEHER JJA &
COMBRINCK AJA.
Heard:
22 NOVEMBER 2006
Delivered:
20 FEBRUARY 2007
Summary:
Injuria
–
appropriation of the name of another for personal
advantage.
Neutral citation: This judgment may be referred to as
Grütter v Lombard
[2007]
SCA 2 (RSA).
_______________________________________________________________
JUDGMENT
_______________________________________________________________
NUGENT JA
NUGENT JA
:
[1] Mr Grütter (the appellant) and Mr Lombard (the
first respondent) are attorneys who practise in Pretoria. Grütter
specializes
in water and property law and Lombard is principally a
conveyancer. In 1996 they agreed to practise from shared premises
under the
name ‘Grütter and Lombard’. In 2004 they were joined
by Ms Oosthuizen (the second respondent). The capacity in which she
joined
them is not entirely clear but that is not material.
[2] Early in 2005 Grütter terminated his agreement with
Lombard and began practising in association with a certain Mr
Grobbelaar
under the name ‘Grütter and Grobbelaar’. Meanwhile,
Lombard and Oosthuizen continued practising together under the name
‘Grütter
and Lombard’. Grütter asked Lombard to desist from
using the name ‘Grütter’ in the description of his practice but
Lombard
declined to do so and Grütter applied to the High Court at
Pretoria for an order prohibiting him from doing so. Oosthuizen was
subsequently
joined in the proceedings on the insistence of Lombard
and the prohibition that was sought was extended to encompass her.
The court
below (Mullins AJ) dismissed the application but granted
Grütter leave to appeal to this court.
[3] There is no suggestion by Grütter that Lombard or
Oosthuizen are committing the wrong of passing-off (which they
clearly are
not doing).
1
Nor does he claim an exclusive right to use the name
‘Grütter’ (which he clearly does not have). Grütter’s case is
simply
that he is known to be the person named in the description of
the practice and that he does not wish to be identified with the
practice
now that his association with it has come to an end.
[4] The nature of the relationship between Grütter and
Lombard was hotly contested in the affidavits (with Lombard asserting
that
they practised in partnership and Grütter
asserting
that they did not) but in argument in the court below Grütter’s
counsel conceded that they practised in partnership.
The learned
judge held that the name ‘Grütter and Lombard’ was the property
of the partnership, and held further that upon dissolution
of the
partnership each of the former partners became entitled to continue
using the name of the former partnership, provided that
it did not
place the other former partner at risk of incurring liability,
relying upon principles of English law to that effect.
2
Because there was no material risk that that would
occur, the court went on to hold, Lombard was entitled to continue to
use the name.
[5] It is not necessary to consider whether that
correctly states the consequences of the dissolution of a partnership
in our law
because in this court that concession was not made and the
evidence establishes clearly that Grütter and Lombard were not in
partnership.
The essential features of a partnership were expressed
in the following terms in
Joubert v Tarry &
Co
:
3
‘These essentials are fourfold. First, that each of the partners
brings something into the partnership, or binds himself to bring
something into it, whether it be money, or his labour or skill. The
second essential is that the business should be carried on for
the
joint benefit of both parties. The third is, that the object should
be to make profit. Finally, the contract between the parties
should
be a legitimate contract.’
But for the fourth feature, which is not peculiar to
contracts of partnership,
4
those characteristics of a partnership have since been
consistently endorsed by this court.
5
In
Pezzutto v Dreyer
they were summarised as follows:
6
‘In essence…a partnership is the carrying on of a business (to
which each of the partners contributes) in common for the joint
benefit of the parties with a view to making a profit.’
[6] In the present case although there was an apparent
dispute on the papers as to the nature of the relationship in truth
the material
facts are not in dispute and they disclose none of the
features of a partnership. Grütter and Lombard each pursued his own
practice,
independently of the other, each with his own clients, each
bearing his own expenses that were peculiar to his own practice, and
each reaping the rewards of his own endeavours to the exclusion of
the other. They came together only to share premises and certain
administrative facilities and the overhead expenses that that
entailed. It is true that at times they both represented to others
that they were partners, as pointed out by Lombard, but that is not
material if in truth their association lacked the commonality
of
interest and reward that characterises a partnership. It is clear
that it did lack that commonality and in the absence of a
relationship
of partnership the name under which they practised was
not an asset that fell to be utilised and disposed of in accordance
with partnership
principles. What the evidence discloses is no more
than an agreement between Grütter and Lombard to associate with one
another for
the limited purpose of sharing facilities and expenses
and to pursue their respective practices under their joint names.
That agreement
having come to an end the question is whether Lombard
is entitled to use Grütter’s name in the description of his
practice without
his consent.
[7] The extent to which the features of a person’s
identity – for example his or her name or likeness – constitute
interests
that are capable of legal protection has received little
attention from our courts. In the United States the appropriation of
a person’s
name or likeness for the benefit or advantage of another
has come to be recognised as an independent tort during the course of
the
last century.
7
The English common law seems to have been more reticent
in that regard.
8
In his illuminating dissertation on the subject
9
P.P.J. Coetser observes that in Germany ‘wide
protection has been afforded by the positive law to an individual’s
interest in
identity’ from which has emerged that ‘it is unlawful
to use certain aspects of personality for commercial purposes without
consent.’
10
[8] In this country it appears to be generally accepted
academic opinion that features of personal identity are indeed
capable (and
deserving) of legal protection.
11
In his seminal work on personality rights, which draws
in this respect upon Coetser’s dissertation,
12
Professor Neethling expresses it as follows:
13
‘
Onder identiteit as ʼn persoonlikheidsbelang
word verstaan daardie uniekheid of eieaardigheid van ʼn persoon wat
hom as ʼn bepaalde
individu identifiseer of individualiseer en hom
sodoende van andere onderskei. Identiteit manifesteer sigself in
verskeie
indicia
waaraan
die betrokke persoon herken kan word: dit wil sê, fasette van sy
persoonlikheid wat kenmerkend van of eie aan hom is, soos
sy
lewensgeskiedenis, sy karakter, sy naam, sy kredietwaardigheid, sy
stem, sy handskrif, sy gestaltebeeld en so meer. ʼn Persoon
het ʼn
besliste belang daarin dat die eieaard van sy wese en handelinge deur
buitestanders gerespekteer moet word. Dienooreenkomstig
word
identiteit geskend indien
indicia
daarvan sonder magtiging gebruik word
op ʼn wyse wat nie met die ware beeld van die belanghebbende te
versoen is nie.’
Professor McQuoid-Mason describes the appropriation of a
person’s image or likeness (the same must apply to other features
of identity)
as
‘a violation of a person’s right to decide for herself who should
have access to her image and likeness – something that goes
to the
root of individual autonomy or privacy.’
14
[9] In
Universiteit van Pretoria
v Tommie Meyer Films (Edms) Bpk
15
Mostert J recognised that the interest that a person has
in his or her identity is capable of delictual protection though his
observations
in that regard were obiter. Earlier, in
O’Keeffe
v Argus Printing and Publishing Co Ltd,
16
it was held that the
actio
injuriarum
was capable of protecting a person
against unauthorized publication of his or her name and likeness in
an advertisement.
[10] The essential elements of an
injuria
were formulated as follows by Innes CJ in
R
v Umfaan
17
(a formulation that was later approved by this court in
R v Chipo
18
)
:
‘If we look at the essentials of
injuria
we find – as
pointed out by De Villiers in his
Law of Injuries
, which is a
mine of information on this subject – that they are three. The act
complained of must be wrongful; it must be intentional;
and it must
violate one or other of those real rights, those rights
in rem
,
related to personality, which every free man is entitled to enjoy.
Chief Justice De Villiers says (p.27): “With these ingredients
to
hand it will be found that there are three essential requisites to
establish an action of injury. They are as follows – (1)
an
intention on the part of the offender to produce the effect of his
act; (2) an overt act which the person doing it is not legally
competent to do; and which at the same time is (3) an aggression upon
the right of another, by which aggression the other is aggrieved
and
which constitutes an impairment of the person, dignity or reputation
of the other.”’
[11] In
O’Keefe
(which was decided on exception to the claim) it was
held that the non-consensual publication of a person’s likeness and
name for
advertising purposes was capable of constituting an
impairment of his or her dignity and thus an
injuria.
Rejecting a submission that in order to
constitute a violation of dignity for purposes of the
actio
injuriarum
there must necessarily be an
element of insult (relying for the rejection of that submission on
what was said by this court in
Foulds v
Smith
19
)
Watermeyer J went on to say the following:
20
‘It seems to me that to use a person’s photograph and name,
without his consent, for advertising purposes may reasonably
constitute
offensive conduct on the part of the user. In the well
known English case of
Tolley v J.S. Fry and Sons Ltd.
[1931] UKHL 1
; ,
1930
(1) K.B. 467
;
1931 A.C. 333
, a defamation case, and so not wholly
in
pari materia
with the present case, Greer, L.J., in the Court of
Appeal expressed the view that in publishing a caricature of the
plaintiff without
his consent as an advertisement for the defendants’
chocolate, the defendants had acted
“
in a manner inconsistent with the decencies of life
and in so doing they were guilty of an act for which there ought to
be a legal
remedy.”
Similarly in the United States of America the legal principle is well
established that the unauthori
s
ed publication of a person’s
photograph for advertising purposes is actionable. The principle
there in force goes much further,
and strikes at all invasions of
privacy which can reasonably be considered offensive to persons of
ordinary sensibilities, and the
unauthorised use of a person’s
photograph for advertisement purposes is merely one of such instances
(see
Restatement of the Law, Torts
para. 867 and the article
of Prof. Winfield in the
Law Quarterly Review,
p.33).
It seems to me that under our law similar considerations must apply.
The unauthorised publication of a person’s photograph and
name for
advertising purposes is in my view capable of constituting an
aggression upon that person’s
dignitas.
It is not necessary
for me in the present case to hold, and I do not hold, that this is
always so. Much must depend upon the circumstances
of each particular
case, the nature of the photograph, the personality of the plaintiff,
his station in life, his previous habits
with reference to publicity
and the like. All that I need decide at this, the exception, stage of
the action is whether the publication
of the advertisement in
question is capable of constituting an
injuria.
In my opinion
it is.’
[12] While the intrusion in that case seems to have been
characterised as one that went to privacy it was said by O’Regan J
in
Khumalo v Holomisa
21
that privacy is but one of ‘a variety of personal
rights’ that are included in the concept of
dignitas
in the context of the
actio
injuriarum.
The interest that a person has in
preserving his or her identity against unauthorised exploitation
seems to me to be qualitatively
indistinguishable and equally
encompassed by that protectable ‘variety of personal rights’. Any
doubt in that regard is removed
by the protection that is now
afforded to human dignity in s 10 of the Bill of Rights,
22
for as O’Regan went on to say in
Khumalo
:
23
‘In our new constitutional order, no sharp line can be drawn
between these injuries to personality rights. The value of human
dignity
in our Constitution is not only concerned with an
individual’s sense of self-worth, but constitutes an affirmation of
the worth
of human beings in our society. It includes the intrinsic
worth of human beings shared by all people as well as the individual
reputation
of each person built upon his or her own individual
achievements. The value of human dignity in our Constitution
therefore values
both the personal sense of self-worth as well as the
public’s estimation of the worth or value of an individual. It
should also
be noted that there is a close link between human dignity
and privacy in our constitutional order. The right to privacy
entrenched
in s 14 of the Constitution, recognises that human beings
have a right to a sphere of intimacy and autonomy that should be
protected
from invasion. This right serves to foster human dignity.
No sharp lines then can be drawn between reputation,
dignitas
and
privacy in giving effect to the value of human dignity in our
Constitution.’
[13] But as appears from the formulation of the elements
of an
injuria
in
R
v Umfaan
that I have quoted earlier in this
judgment, not every intrusion upon those protectable rights of
personality will necessarily constitute
an
injuria
.
Whether a particular act constitutes a wrongful (or unlawful)
violation, and thus an
injuria
,
must necessarily be determined by considerations of legal policy as
in the case of any civil wrong.
24
For an individual who chooses to live in a community
cannot expect always to be shrouded in anonymity. One can envisage
various circumstances
in which considerations of public policy will
justify conduct that impinges upon features of a person’s identity.
But it is not
necessary to consider what those circumstances might be
because I can see no such considerations that justify the
unauthorized use
by the respondents of Grütter’s name for their
own commercial advantage. What is conveyed to the outside world by
the use of Grütter’s
name is that he is in some way professionally
associated with the respondents, or at least that he is willing to
have himself portrayed
as being associated with them, which, as
pointed out by Professor Neethling,
25
is a misrepresentation of the true state of affairs for
which there can be no justification. It was submitted on behalf of
the respondents
that in fact the respondents do not intend to mislead
and have ensured that all enquiries that are made in relation to
Grütter are
always re-directed to him. That does not seem to me to
meet the objection. In my view Grütter is entitled to insist that
there should
be no potential for error in the first place and was
entitled to the order that he claimed. The parties were agreed that
if this
were to be our finding the respondents should be allowed a
period of thirty days to rectify the matter.
[14] The appeal is upheld with costs which are to be
paid by the respondents jointly and severally. The order of the court
below is
set aside and substituted with the following order.
Paragraph (a) of the substituted order is to come into effect thirty
days from
the date that this order is made:
‘
(a) The respondents are prohibited from using the
name ‘Grütter’ in the description of their practice or their
respective practices;
are prohibited from representing in any way
that the applicant is associated with their practice or practices;
and are ordered to
remove the name ‘Grütter’ from the
description of their practice or practices on any nameboard,
letterhead or other material.
The respondents are ordered to pay the costs of the
application jointly and severally.’
____________________
R.W. NUGENT
JUDGE OF APPEAL
CONCUR
:
STREICHER JA)
NAVSA JA)
HEHER JA)
COMBRINCK AJA)
1
Cf
Brian Boswell Circus (Pty) Ltd v Boswell-Wilkie Circus (Pty) Ltd
1985 (4) SA 466
(A) at 478E-479F
2
Esp
Gray v Smith
(1889) 43 Ch 208
(CA) at 220;
Burchell v
Wilde
(1900) 1 Ch 551
(CA) at 562-3;
Lindley on the Law of
Partnership
14 ed pp 229-230; but see
Byford v Oliver
[2003] EWHC 295
(Ch).
3
1915
TPD 277
at 280-1.
4
Bester
v Van Niekerk
1960 (2) SA 779
(A) at 784A.
5
Bester
v Van Niekerk,
above;
Purdon v Muller
1961 (2) SA 211
(A)
at 218B-D;
Pezzutto v Dreyer
[1992] ZASCA 46
;
1992 (3) SA 379
(A) at 390A-C.
6
Above,
at 390D-E.
7
William
L. Prosser
Handbook of the Law of Torts
4 ed para 117.
8
Tim
Frazer ‘Appropriation of Personality – a New Tort?’
1983 (99)
LQR
281.
9
P.P.J.
Coetser
Die Reg op Identiteit.
Unpublished dissertation for the degree magister legum at
the University of South Africa.
10
Above,
p.67, (my translation)..
11
J.
Neethling
Persoonlikheidsreg
4 ed pp 44-47, 307; Coetser,
above, pp 269-270; Jonathan Burchell
Personality Rights and
Freedom of Expression: The modern actio injuriarum
p 333; David
McQuoid-Mason on ‘Privacy’ in Chaskalson et al
Constitutional
Law of South Africa
p 38-9.
12
Coetser’s
dissertation was written under the supervision of Professor
Neethling.
13
Neethling,
above, pp 44-45.
14
David
McQuoid-Mason, above.
15
1977
(4) SA 376
(T) at 386G-387B.
16
1954
(3) SA 244
(C).
17
1908
TS 62
at 66-7.
18
1953
(4) SA 573
(A) at 576A-B.
19
1950
(1) SA 1
(AD) at 11. See, too, Burchell, above, pp 331-2.
20
249A-E.
21
[2002] ZACC 12
;
2002
(5) SA 401
(CC) para 27.
22
‘Everyone
has inherent dignity and the right to have their dignity respected
and protected.’
23
Para
27. See, too,
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) paras 328
and 329;
Ferreira v Levin NO, Vryenhoek v Powell NO
1996 (1)
SA 984
(CC) paras 47-49;
National Coalition for Gay and Lesbian
Equality v Minister of Justice
1999 (1) SA 6
(CC) para 28.
24
Neethling,
above, p 308 ; Burchell, above, p 414.
25
Above,
p 308.